Thursday, February 25, 2016
Land Use Prof Blog is a completely non-partisan forum, but I was fascinated to read this recent article in the Colorado Springs Gazette (apparently picked up from AP) about Marco Rubio's early career as a land use lawyer. (I'm guessing the article appeared in a Colorado publication because the Colorado caucuses are on "Super Tuesday," March 1, although the Colorado Republicans will not actually be caucusing for Presidential candidates, leaving that to their delegates at the national convention.)
It's not often that a zoning lawyer rises to national political prominence. The article is also interesting because it discusses Rubio's work for clients vis a vis his position in the Florida Legislature, and seems exemplary of the role of politics in local land use decisions.
Jamie Baker Roskie
Wednesday, February 24, 2016
Cost-benefit analysis of health benefits from reducing emissions so they do not surpass 2 °C released
The first cost-benefit analysis of health benefits from reducing emissions so they do not surpass a 2-degree C threshold is just out in Nature Climate Change. Here is the abstract (edited to eliminate internal footnotes):
An emissions trajectory for the US consistent with 2 °C warming would require marked societal changes, making it crucial to understand the associated benefits. Previous studies have examined technological potentials and implementation costs and public health benefits have been quantified for less-aggressive potential emissions-reduction policies, but researchers have not yet fully explored the multiple benefits of reductions consistent with 2 °C. We examine the impacts of such highly ambitious scenarios for clean energy and vehicles. US transportation emissions reductions avoid ~0.03 °C global warming in 2030 (0.15 °C in 2100), whereas energy emissions reductions avoid ~0.05–0.07 °C 2030 warming (~0.25 °C in 2100). Nationally, however, clean energy policies produce climate disbenefits including warmer summers (although these would be eliminated by the remote effects of similar policies if they were undertaken elsewhere). The policies also greatly reduce damaging ambient particulate matter and ozone. By 2030, clean energy policies could prevent ~175,000 premature deaths, with ~22,000 (11,000–96,000; 95% confidence) fewer annually thereafter, whereas clean transportation could prevent ~120,000 premature deaths and ~14,000 (9,000–52,000) annually thereafter. Near-term national benefits are valued at ~US$250 billion (140 billion to 1,050 billion) per year, which is likely to exceed implementation costs. Including longer-term, worldwide climate impacts, benefits roughly quintuple, becoming ~5–10 times larger than estimated implementation costs. Achieving the benefits, however, would require both larger and broader emissions reductions than those in current legislation or regulations.
Article cite: Climate and health impacts of US emissions reductions consistent with 2 °C, Nature Climate Change (2016): doi:10.1038/nclimate2935.
Tuesday, February 23, 2016
The Atlantic uploaded yesterday an interview by Amanda Kolson Hurley of Myron Orfield (Minn). Titled "The Persistence of America's 'Easy White Enclaves,'" the interview explores policy decisions about the siting of subsidized housing development, which issues are so topical now that SCOTUS has remanded the Inclusive Communities litigation. But, Orfield also discusses what his research has shown about what levels of integration (read: diminution of white predominance) lead to resegregation. The short piece links to a 2013 Housing Policy Debate article Orfield co-authored with Thomas Luce as well as a more recent study of the causes of segregation in the Twin Cities.
Apparently the wealthy elites are not pleased with the new directive issued by Chinese leadership to eliminate all gated communities. The Global Times has nice coverage:
A government document that instructs cities across China to open up the enormous numbers of gated residential compounds to ease traffic congestion aroused public controversy on Monday, with many residents arguing that the administrative order, though well-intentioned, may bring personal and property safety concerns.
The Communist Party of China Central Committee and the State Council on Sunday issued guidelines on urban development to deal with "urban ills" resulting from poor urban design. These ills include congestion, pollution and designing either over-large buildings or those which are too exotic.
The document said China will optimize the structure of street networks to promote an open and easy-access street-and-block system.
"No more enclosed residential compounds will be built in principle," the document said. "Existing residential and corporate compounds will gradually open up, so the interior roads can be put into public use, which will save land and help reallocate transport networks."
Since the late 1980s, many cities have built sprawling gated residential compounds - many with lawns and exercise venues and facilities inside - for safety and a better living environment for the apartment owners.
Congestion has plagued China's cities, despite ambitious expressway-building projects. Freeing up narrower roads and congested street designs have become a new concept in the country's urban planning.
The release of the guidelines comes two months after leaders met for the Central Urban Work Conference, promising to make China's sprawling cities more livable and green. The last time China held such a meeting was in 1978, when only 18 percent of the population lived in cities. That had increased to 56.1 percent by the end of 2015, according to the Xinhua News Agency.
"The second urban work conference, 37 years after the first, shows that urban planning is a core problem in China's economic and social development," Niu Fengrui, director of the Institute for Urban and Environmental Studies at the Chinese Academy of Social Sciences, told the Global Times.
From the NYT:
A directive issued on Sunday by the State Council, China’s cabinet, and the Communist Party’s Central Committee says no to architecture that is “oversized, xenocentric, weird” and devoid of cultural tradition. Instead, buildings should be “suitable, economic, green and pleasing to the eye.”
The directive also calls for an end to gated communities. . . .
[T]he same directive also says there are to be no more gated residential communities. Those already in place will be gradually opened to the public, with their roads opened to traffic with one goal being to ease congestion.
China began building gated apartment complexes and suburban developments in the 1990s when the private property market first took off.
Monday, February 22, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Advent of Local Environmental Law
As American development progressed into the 1980s, the landscape changed due to the prevalence of sprawl. People became perturbed at the local level, where environmental degradation is painfully obvious. Natural resources were threatened. Open space, wetlands, and habitats—and their obvious local benefits—diminished. Many of these problems were beyond the reach and competence of federal environmental law, with its primary focus on point source pollution of the air and navigable waters. As these worries deepened, local leaders and their lawyers gradually learned to rely on “local environmental law” as an antidote and, in doing so, greatly widened the net of land use law.
As land use regulation matured during the 1950s and 1960s, the line between physical, or infrastructure, planning and natural resource protection blurred. In 1955, for example, rezoning that increased lot sizes in single-family zones to protect drinking water from pollution was upheld in De Mars v. Zoning Commission of Town of Bolton (CT. 1955). The Connecticut Supreme Court rested its decision, in part, on the fact that one of the purposes of the state zoning enabling act was “to promote the most appropriate use of the land.” The National Flood Insurance Program, created in 1968, exerted an early and strong influence on the initiation of local environmental legislation. It required localities to adopt and enforce floodplain zoning restrictions so that local property owners would be eligible for flood disaster insurance and payments. Although originally focused on minimizing property loss and personal injury, flood insurance regulation gradually recognized and, in some cases, protected the ecological services provided by floodplains. This concern for nature gradually grew as local environmental law progressed into the 1990s.
Local land use law, we now understand, dictates how much of the land is covered with impervious surfaces, causing flooding; how many miles of roads are built, fragmenting habitats and watersheds; how many septic systems, sewer plants, and water systems are created, diminishing ground and surface water quantity and quality; and where buildings and improvements are located, increasing vehicle miles traveled and air pollution, aggravating climate change. Quite obviously, regulating land development and environmental considerations are intimately linked.
As local environmental perturbations increased, more localities adopted laws that protect natural resources and lessen environmental pollution. These local environmental laws take a number of forms and accomplish an array of objectives. They include local comprehensive plans expressing environmental values, zoning districts created to protect critical environmental areas, environmental standards contained in subdivision and site plan regulations, and stand-alone environmental laws adopted to protect particular natural features such as ridgelines, wetlands, floodplains, stream banks, existing vegetative cover, and forests. Local governments have creatively used a variety of traditional and modern powers that their state legislatures have delegated to them to address locally occurring environmental problems.
Much progress has been made under the authority to encourage the appropriate use of the land through zoning. In some states, however state legislatures are more explicit. They authorize local governments, for example, to protect the physical and aesthetic environment, control development in floodplains, prevent soil erosion, or require local governments to conduct environmental impact reviews before approving development proposals.
The evolution of this authority is seen in South Carolina. The state constitution authorizes the legislature to provide for “the structure and organization, powers, duties, functions and responsibilities of the municipalities.” The state constitution says that “[t]he provisions of [the] Constitution and all laws concerning local government shall be liberally construed in their favor,” and that any powers granted local governments by the constitution and laws “shall include those fairly implied and not prohibited by [the] Constitution” (S.C. Const. Art. VIII, § 17).
This broad grant of local authority was statutorily implemented by the South Carolina Legislature through the South Carolina Local Government Planning Enabling Act, which requires local plans to include natural resource components.. State law requires that all zoning and land use regulations must be in accordance with the comprehensive plan. The Act also authorizes a variety of Neo-Euclidian techniques to be used, and makes it clear that “any other planning and zoning techniques may be used.” Municipalities are authorized by this state law to consider “the protection of . . . ecologically sensitive areas” in adopting their zoning laws.
We learn two key lessons from this continuing progress toward a robust system of local environmental law. The first is that local legislators, driven by residents animated by environmental degradation, have surprisingly broad powers to protect the environment in many states. This springs from the parochial nature of local land use law, where citizens within constrained borders call for their natural resources to be protected. The second is that environmental resources often transcend those borders and require intermunicipal or regional arrangements to be effectively protected, which I will take up in Part 8.
Links to previous posts in the Zoning Centennial’s Series:
Sunday, February 21, 2016
Worth noodling around with.
From the press release:
The U.S. Environmental Protection Agency today released DWMAPS – the Drinking Water Mapping Application to Protect Source Waters. This robust, online mapping tool provides the public, water system operators, state programs, and federal agencies with critical information to help them safeguard the sources of America’s drinking water.
DWMAPS allows users to learn about their watershed and understand more about their water supplier. DWMAPS also lets users see if sources of their drinking water are polluted and if there are possible sources of pollution that could affect their communities’ water supply. DWMAPS can even guide users to ways they can get involved in protecting drinking water sources in their community.
“A key part of having safe drinking water is protecting the sources – the streams, rivers, and lakes where utilities withdraw water,” said EPA Administrator Gina McCarthy. “DWMAPS is the latest example of how EPA is using technology and digital tools to better protect public health and the environment.
Utilities and state drinking water program managers can also use DWMAPS with their own state and local data. It allows them to identify potential sources of contamination in their locations, find data to support source water assessments and plans to manage potential sources of contamination and evaluate accidental spills and releases. DWMAPS also integrates drinking water protection activities with other environmental programs at the federal, state, and local levels.
DWMAPS can provide users with information to update source water assessments and prioritize source water protection in any location or watershed in the country. Specifically, DWMAPS helps users to:
- Identify potential sources of contamination in locations defined by users;
- Find data to support source water assessments and plans to manage potential sources of contamination;
- Evaluate accidental spills and releases, identifying where emergency response resources for accidental releases must be readily available; and
- Promote integration of drinking water protection activities with other environmental programs at the EPA, state, and local levels.
The mapping system will not display the locations of Public Water System facility intakes, but it does contain a wide variety of data useful to the protection of drinking water sources. EPA developed DWMAPS in consultation with EPA regional drinking water programs, state drinking water regulators, and public water systems.
Friday, February 19, 2016
High Country News is a print and online publication that offers excellent coverage of news related to Western issues. Yesterday Elizabeth Shogren, their "DC Dispatch" reporter, posted a fascinating article entitled "Scalia was Supreme Court’s leader on limiting environmental rules: A conservative legal foundation fears its winning streak may be over."
In his opinion in the 2006 Clean Water Act case known as Rapanos, one of the Pacific Legal Foundation’s biggest triumphs, Scalia criticized “the immense expansion of federal regulation of land use that has occurred under the Clean Water Act — without any change in the governing statute — during the past five Presidential administrations.”
Scalia’s death dims the Pacific Foundation's chances in a major environmental case on the horizon. The Supreme Court is expected to eventually review Obama’s Clean Water Rule, which has been stayed by a lower court. Significantly for the arid West, the rule would protect tributaries, no matter how frequently water flows in them, as well as some wetlands, ponds and ditches. "With Justice Scalia’s departure, it’s fair to say it’s more likely to be upheld," Schiff says. “The impacts will be principally in the West. It’s precisely in the areas that are dry most of the year that you have the most significant disputes about the Clean Water Act.”
The article also discusses the potential impact to the Clean Power Plan, as well as the impact to administrative-law-related decisions generally.
Jamie Baker Roskie
Thursday, February 18, 2016
Miller & Sivas on Bloomberg Radio discussing Sierra Club's new fracking case related to Oklahoma earthquakes
Today I did an interview with Bloomberg Radio about the Sierra's Club's fracking lawsuit in Oklahoma. Here is Bloomberg's write-up:
Stephen Miller, a law professor at the University of Idaho College of Law, Brandon Barnes, a litigation analyst for Bloomberg Intelligence, and Deborah Sivas, a professor of environmental Law at the Stanford University Law School, discuss a lawsuit against three fracking companies in Oklahoma. The lawsuit, which has been brought by the Sierra Club, alleges that the fracking process has led to an increase in earthquakes in the surrounding areas. They spoke with Bloomberg Law host June Grasso on Bloomberg Radio’s "Bloomberg Law."
Great planning position in Menlo Park. From my friend Thomas Rogers:
Salary: $105,950.29 - $127,766.65 Annually
Under the general direction of the Community Development Director, performs work necessary to maintain professional planning functions, process development projects, and provide for effective administrative operations to ensure a sustainable, safe and vibrant community; and any other related duties as required.
IMPORTANT AND ESSENTIAL
This is a professional planning supervisory classification. Work consists of continuing responsibility for implementing the city’s planning functions by personally performing work and providing direction to others in one or more of the following areas.
Focus on single-family residential development, small multiple-family residential development and neighborhood commercial development within the context of current planning activities. Responsible for the City’s ordinances, regulations and processing systems in these same focus areas as well as implementation and updating of the City’s Housing Element.
Direction and Supervision
Provides direct supervision of Planning staff; Participates in the selection, training and evaluation of staff; Assists in preparing the annual goals and objectives for the Planning functions; Assists in preparing and managing the budget for the Planning functions.
Conducts and supervises professional planning work connected with the development, monitoring and updating of City policy and regulatory land use documents, including the General Plan, Zoning Ordinance, specific plans and other land use studies; Provides guidance to and coordination of the professional planning team, including consultants, to ensure work is progressing toward established goals; Effectively represents the City at public meetings and to Commissions and the City Council; Provides guidance on appropriate community engagement and outreach tools and approaches; Provides guidance on necessary data collection, analysis and management; Evaluates long-range planning documents on an on-going basis and recommends to the Director timely revisions of the documents.
Conducts and supervises the professional review and processing of proposed development projects to ensure that applications for land use entitlements are complete and in conformance with City policies and regulations, as well as regional, state and federal requirements; Determines appropriate legal and regulatory procedures; Provides professional planning advice to and assistance to project applicants, members of the community, Commission and Council members; Coordinates the technical processing of development proposals, including compliance with the California Environmental Quality Act; Monitors general operating policies and procedures for the efficient and cohesive review of development proposals and recommends changes to the Director; Interprets development regulations and resolves inconsistencies in requirements.
California Environmental Quality Act
Personally prepares or supervises the preparation of documents required to ensure compliance with state and federal environmental requirements. If needed, arranges for obtaining consultant services for preparation of environmental documents including the development of requests for proposals, selecting the consultant, processing an agreement and supervising the consultant’s work.
Coordinates with other City departments, other local jurisdictions and agencies, and regional, state and federal agencies during the development review process for individual projects.
Serves as Secretary and/or staff for Planning matters on behalf of the Community Development Department to various Boards, Committees and Commissions; Prepares reports on planning and administrative operations necessary for effective monitoring of the development review process; Conducts special studies and prepares related reports as needed to evaluate specific issues; Provides information to members of the public and other persons on Planning policies and regulations; Receives, investigates and responds to complaints connected with planning operations and personnel; Performs other work assigned by the Director which is consistent with the scope of responsibilities of the position.
- Assist in developing department goals and objectives and assist in the development of and implementation of policies and procedures;
- Coordinate development review activities;
- Supervise and participate in the implementation of the City's General Plan;
- Conceive and implement programs and activities to improve the efficiency of the development review process;
- Recommend the appointment of staff, provide or coordinate staff training, conduct performance evaluations, and implement discipline procedures as required;
- Research and prepare technical and administrative reports and written correspondence;
- Establish and maintain positive working relationships with co-workers, other City employees, public and private officials, and the general public using principles of good customer service;
- Perform related duties as assigned.
JOB-RELATED AND ESSENTIAL
Principles and practices of governmental development review including planning, engineering and building inspection; State, County and City laws and regulations applicable to development review; principles of management, personnel administration, and public relations; principles and practices of policy development and implementation; principles and practices of leadership, motivation, team building and conflict resolution; principles and practices of business correspondence and report writing; pertinent local, State and Federal rules, regulations and laws; budgeting procedures and techniques; and modern office procedures, methods and computer equipment.
Prepare, review and interpret a sound development review program for the City; collect and analyze data, and recommend revisions in municipal land use regulations consistent with local needs; analyze budget and technical reports; interpret and evaluate staff reports; know laws, regulations and codes; observe performance and evaluate staff; problem solve department related issues; interpret and explain policy, rules and procedures; prepare ordinances and formulate recommendations for land use policies; analyze problems, identify alternative solutions, project consequences of proposed actions and implement recommendations in support of goals; gain cooperation through discussion and persuasion; mediate problems and resolve conflicts within the Department and with other City Departments; communicate effectively, both orally and in writing; prepare oral and written reports and provide staff direction; train, supervise and evaluate assigned staff; establish and maintain cooperative working relationships with those contacted in the course of work.
Equivalent to graduation from an accredited four-year college or university with major work in a closely related field.
This position may require at least five (5) years of full time, increasingly responsible experience in municipal development review work.
LICENSE OR CERTIFICATE
Possession of a valid California Class C driver’s license and a satisfactory driving record as a condition of initial and continued employment.
May sit for long periods of time; May attend night meetings; operates general office equipment.
Supervision Received and Exercised:
Receives direction from the Director of Community Development; Exercises direct supervision over professional planning staff; May be asked to serve as Director of Community Development in Director's absence; This classification may also perform any and all functions of Senior Planner, Associate Planner and Assistant Planner.
The City offers an excellent benefit package consisting of:
- Vacation: 11 days per year to start out and will gain more with time and tenure.
- Sick Leave: 8 hours per month earned.
- Health Insurance: City contribution towards medical coverage.
- Holidays:11 official holidays and 30 float hours off per year.
- Dental: Delta Dental Plan
- Vision - City sponsored
- Retirement: CalPERS: For classic members 2.0% @60 formula. For all others, 2%@62 formula. For more information on how CalPERS retirement reform (PEPRA) affect you, please contact CalPERS at 1-888-225-7377.
- Deferred Compensation: Voluntary participation in City Plans.
- Life Insurance: 1-1/2 times regular annual wage.
- Long Term Disability: Subject to a 45 day waiting period.
Wednesday, February 17, 2016
After going to see Hamilton last month, I quipped on this blog that someone should do a hip-hop show about Robert Moses and Jane Jacobs. Imagine my surprise, then, to read in the New Yorker this week that there is, in fact, a new opera about to open focused on--what else--Robert Moses and Jane Jacobs. It seems the pair's Broadway debut has arrived. Here is an excerpt from the New Yorker article:
Will Rawls was waiting in the Lorimer Street subway station one recent Sunday, trying to get to a rehearsal in Chelsea—Rawls is the choreographer for a new opera about Robert Moses, the dictatorial city planner, and Jane Jacobs, the populist city un-planner—when he had a thought. The L train wasn’t coming, and pretty soon, with repairs threatening to suspend service between Brooklyn and Manhattan for more than a year, the train wouldn’t be coming at all. “I was, like, this shit is always broken,” Rawls said, after arriving in Chelsea. “I almost want Robert Moses 2.0 to come back and fix the M.T.A.”
“That’s a very human emotion, to want a Moses-like figure to come in and fix everything,” Joshua Frankel, the opera’s director, said.
"What did Moses do about public transit, anyway?” Rawls asked.
“Starved it of money,” Frankel said, with a shrug.
The opera, “A Marvelous Order,” which premières next month, has two acts—“Robert Moses wouldn’t fit inside a one-act play,” Rawls said—and traces Jacobs’s mid-century fights against Moses’s attempts to build a four-lane road through the middle of Washington Square Park and a ten-lane crosstown expressway along Broome Street. Jacobs thought that Moses was trying to “Los Angelize” New York. Moses thought the only people opposing his plans were “a bunch of mothers.”
The opera is called "A Marvelous Order," and you can check out its website here. A promotional video is below.
Tuesday, February 16, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Surprising Origins of Smart Growth
The idea that local land use law can intelligently shape settlement patterns was not a familiar concept in the late 1960s when the Town of Ramapo, New York adopted an ordinance that delayed development permits until the Town could provide needed infrastructure. Ramapo was experiencing unprecedented growth as one of the closest northern suburbs of New York City. Developers, who in some cases had to wait years for services to their land, sued; they argued that these phased development controls were intended to prohibit subdivisions and restrict population growth, which is not authorized under the state’s zoning enabling legislation.
New York’s highest court disagreed, holding that “phased growth is well within the ambit of existing enabling legislation.” Golden v. Planning Board of Ramapo (1972). The court found that Ramapo was not acting to close its borders to growth, but was trying to prevent the negative effects of uncontrolled growth. It found that Ramapo’s zoning was not in violation of the Federal or New York State Constitutions, because a rational basis for phased growth exists where “the existing physical and financial resources of the community are inadequate to furnish the essential services and facilities which a substantial increase in population requires.”
Another form of growth control, a strategy that became known as smart growth, was created 25 years later in Maryland, under Governor Parris Glendenning (now President of the Smart Growth Leadership Institute). He radically changed state budget priorities by investing state infrastructure funds in priority growth areas to foster new development and by acquiring open space in conservation areas to preserve natural resources. This approach controlled growth in order to reign in the ill effects of sprawling land use patterns. Such patterns evolve gradually, as the land use blueprint contained in the municipal zoning ordinance is built out, one project at a time.
Maryland did what the Ramapo court suggested that the New York State legislature should do. “Of course,” the court wrote, “these problems cannot be solved by Ramapo or any single municipality, but depend upon the accommodation of widely disparate interests for their ultimate resolution. To that end, Statewide or regional control of planning would insure that interests broader than that of the municipality underlie various land use policies.”
Glendenning’s strategy called for local action. If local governments are to revise their basic blueprint and accomplish smarter growth, how should they proceed? State law provides numerous planning tools for municipalities to use to accomplish growth and conservation objectives. Principal among these, of course, is the comprehensive plan, the ideal document to account for the rational allocation of land use.
Local plans, properly drafted to accomplish smart growth, call for the use of a host of land use techniques that are capable of creating smarter, less wasteful, and more economically-efficient development patterns. These include, among others, cluster zoning, performance zoning, overlay zoning, floating zones, transit oriented development, traditional neighborhood zoning, planned unit development zoning, the purchase of development rights, the imposition of conservation easements, and the transfer of development rights. In addition, comprehensive plans can guide the creation of capital budgets and the funding of water, sewer, roads, lighting, sidewalks, parks, and education infrastructure in areas where denser development is needed.
Today, priority growth areas include cities and urban villages which are out-competing suburbs for growth and its benefits. Urban neighborhoods are fueling the economy by spiking construction and retail jobs, increasing real estate sales, brokerage commissions, financing, and title coverage as well as providing urban amenities to newly formed households looking for lively places to work and live. These efforts in the cities and villages that host our colleges, hospitals, affordable housing, restaurants, and entertainment venues make both themselves and development in adjacent communities more viable. Workers and residents, for example, are attracted to a transformed mixed-use office park when they can access the shopping, night life, and services available in a nearby, rejuvenating city or village.
Smart Growth is a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, non-point source pollution, the high cost of housing, increasing local property taxes, longer commutes, excessive fossil fuel and energy consumption, and the diminishing quality of community life. What was barely perceptible in the real estate market 15 years ago is rapidly becoming a booming business. Developers make it clear that they will invest in this new market, but only where local mayors and councils are champions of sustainable development, where a clear local vision and conforming zoning are in place, and where the local land use approval process works efficiently.
States are following Maryland’s example, learning how to shape spending policies to influence local action. They are adopting smart-growth infrastructure plans, new energy plans, complete street infrastructure policies, main street programs, climate-smart communities initiatives, brownfield spending budgets, and transit-oriented development policies and programs. Together, these state efforts create a clear target for local governments and developers to address.
What is smart about these policies and the projects they spawn, in addition to being sensitive to powerful new market trends and utilizing existing infrastructure, is that they also greatly reduce, on a per household basis, water consumption, energy use, building materials used, and the impervious coverage that causes storm water runoff and flooding. These developments can also be more affordable, particularly where localities offer bonus densities to developers in exchange for workforce housing, bringing office, research, retail, and service workers closer to where they work.
Links to previous posts in the Zoning Centennial’s Series:
Monday, February 15, 2016
Yesterday our fearless leader, Stephen R. Miller, blogged about Justice Scalia's three most important land-use-related decisions. I agree with his assessment that Nollan and Lucas are two of the most influential takings cases ever decided, and certainly Rapanos' change in wetlands regulation are had a dramatic effect on the development industry and control of water quality (although arguably Justice Kennedy's concurrence with its "significant nexus" test is more relied upon by regulators).
Inspired by Stephen, I perused the list of Scalia-authored opinions and found a couple more of interest. In the vein of my previous post about how Scalia's passing will likely result in the survival of President Obama's Clean Power Plan, I also think Scalia's decision in Michigan v. EPA was highly influential. It held that the EPA must consider cost when deciding whether regulations under the Clean Air Act is "appropriate and necessary." (Bob Sussman wrote about the impact of Michigan v. EPA for the Brookings last summer.)
Also, a somewhat lesser known but important Scalia-authored case was City of Columbia v. Omni Outdoor Advertising (1991), in which the court upheld anti-trust immunity for local governments enacting zoning restrictions - in this case, those that regulated signs. (Linda Greenhouse covered the case for The New York Times.) Although this case lacks the colorful language of some of Scalia's more recent opinions (primarily dissents), it is interesting reading for those of us who care about the limits of local government police power.
Jamie Baker Roskie
Sunday, February 14, 2016
With Justice Scalia's passing, I began thinking about his most influential opinions that affect land use law. Three stood out:
Nollan v. California Coastal Com’n, 483 U.S. 825 (1987)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
Rapanos v. U.S., 547 U.S. 715 (2006)
Other contenders for most important Scalia opinions affecting land use law?
Saturday, February 13, 2016
As many of us are just learning, Justice Antonin Scalia died overnight while vacationing at a West Texas hunting resort. And while that news settles, already speculation and punditry is exploding in both traditional and social media.
The most immediate implication to land use law is the fate of the Obama Administration's Clean Power Plan. Only a few days ago the Supreme Court stayed implementation of the CPP. However, New York Magazine is reporting that with Scalia's death the plan is likely to survive. Its fate is to be decided (and will likely be upheld) by the D.C. Circuit. With the court likely deadlocked 4-4 on many contentious issues until Scalia's successor is appointed, the Circuit Court's decision is unlikely to be overturned. More on what happens to the Term's most contentious cases appears on Scotusblog.
More as it develops.
Jamie Baker Roskie
Friday, February 12, 2016
Local governments spend a lot of time these days thinking about how to regulate the sharing economy. But are there opportunities local governments should be seizing that the new platform-based businesses offer?
If this question interests you, then I'd suggest you could do worse than the following article and, well, my response to it. Daniel E. Rauch (Yale - Student) and David Schleicher (Yale) wrote an excellent article, Like Uber, But for Local Governmental Policy: The Future of Local Regulation of the 'Sharing Economy,' which was recently published in the Ohio State Law Journal. Here is there abstract:
In the past five years, “sharing economy” firms like Uber, ZipCar, AirBnB and TaskRabbit have generated both huge market valuations and fierce regulatory contests in America’s cities. Incumbent firms in the taxi, hotel and other industries, as well consumer protection, labor and neighborhood activists, have pushed for regulations stifling or banning new sharing economy entrants. Sharing firms have fought back, using their popularity with consumers and novel political strategies, lobbying for freedom to operate as broadly as possible without government interference. But to date, both participants and observers of these “sharing wars” have relied on an unstated assumption: if the sharing firms win these fights, their future will be largely free from government regulation. Local governments will either shut sharing down, or they will leave it alone.
But this assumption is almost surely wrong. If sharing firms prevail in the current fights over the right to operate (and indications suggest they will), it is unlikely that cities and states ignore them. Instead, as sharing economy firms move from being upstarts to important and permanent players in key urban industries like transportation, hospitality and dining, local and state governments are likely to adopt the type of mixed regulatory strategies they apply to types of firms with whom sharing firms share important traits, from property developers to incumbent taxi operators. Using tools of agglomeration economics and public choice, this Article sketches the future of such policy regimes.
Specifically, local and state governments will adopt some combination of the following policies in addition to insisting on consumer/incumbent protections: (1) subsidizing sharing firms to encourage expansion of services that produce public goods, generate substantial consumer surplus and/or minimize the need for excessive regulation of the property market; (2) harnessing sharing firms as a tool for redistribution; and/or (3) contracting with sharing firms to provide traditional government services. The future of sharing economy regulation will be very different from its present, and the changes will pose profound legal, political and ethical questions for our cities.
My response is called Decentralized, Disruptive, and On Demand: How the Sharing Economy Will Re-Shape Local Government and will be forthcoming soon(ish) in the Ohio State Law Journal's online publication Furthermore. Here is the abstract:
This essay is a response to Daniel E. Rauch and David Schleicher’s Like Uber, but for Local Government Policy: The Future of Local Regulation of the Sharing Economy. The essay examines policy propositions raised by Rauch and Schleicher, and also affirmatively posits three ways in which local government can use the sharing economy to achieve long-standing policy goals. First, the sharing economy can be used by local governments to decentralize economic development activity throughout the city. Second, when local governments are using regulatory powers to assist redistribution efforts, such as inclusionary zoning, they can consider how sharing firms, such as car-sharing, can be implemented into those existing redistributive requirements. By doing so, local governments can create disruptive markets that assist with the developing competitiveness of the sharing economy. Third, local governments can use sharing economy services for their own proprietary functions. Taken to its logical end, such sharing of government property could go a long way towards eliminating Tieboutian sorting and address regional inequities. In addition, the essay urges local governments to consider long-term implications of the sharing economy, such as how sharing firms may control access to future technologies like autonomous cars, and begin preparing for such futures now when making long-term infrastructure investments.
Thursday, February 11, 2016
Late last year, I was approached by several computer scientists about their desire to propose a regulatory system for short-term rentals in London based upon the transferable sharing rights model I had proposed in an article forthcoming from the Harvard Journal on Legislation. I'm excited to report that CityLab has done a profile of their work, which is available here. See some of Daniele Quercia's other interesting work here.
After considering the proposal for TSRs, the CityLab reporter, Laura Bliss, lists three reasons why she believes TSRs won't work. I thought I would take a shot at responding. Her text is in italics and my response follows:
First, it assumes that Airbnb would be open and transparent in sharing rental data when there’s ample reason to believe otherwise.
Airbnb and other parts of the sharing economy are hesitant to give up data right now because, frankly, their businesses are mostly illegal under existing legal structures. If Airbnb and other sharing firms could be brought within the fold of legality and their basic business not challenged by disclosure, I suspect they would be far more likely to comply. I think the impetus to compliance would be redoubled if it led to an alternative to existing regulatory options, such as those land use-based options tried by major cities like San Francisco or Portland, that do not fit Airbnb's business model and that have largely been failures. Finally, even if Airbnb did not want to provide the information, government's routinely--and rightly so--require market participants to provide data to regulators whether the participants want to do so or not. Inevitably, they types of information necessary for a TSR-based regulatory scheme will be required regulatory disclosure. Take, for instance, the battle between the California Public Utilities Commission and Uber, where the CPUC recently fined Uber $7.3 million for failing to disclose data. CPUC will almost certainly win, and when they do, data compliance in five or ten years will just be part of what is required of transportation network companies. The game for the sharing firms in fighting so hard against disclosure right now is delay until they can establish market share and achieve some modicum of legality. As I noted above, though, I think the sharing firms would be all-the-more willing to enter into such informational disclosures if information disclosure was itself a part of their legalization.
An interesting report detailing the future of Big Data in regulation is by the Roosevelt Institute and available here.
Second, even with good and complete data, it’s untrue that simply running an algorithm reveals important insights about, say, where residents should pay more for rental rights. That still requires human labor and judgment, which can be flawed, to say the least, especially in a context that demands real-time answers.
The whole notion of a TSR scheme, as I proposed it, is that it is imbued with the values of the community and that they can change over time. Rather than analyzing those choices as "flawed" or "correct," I'd suggest that they would be part of the political process of a city and the trade-offs inherent therein. The idea that you cannot make regulation ahead of time in a legislative capacity and then apply it in real-time seems to belie how much of large city government already works. As one example, many major cities already offer on-line building permits for many projects where issuance is ministerial (see, e.g., San Francisco). In other words, a policy decision about the requirements for such a permit was made in advance, and when a person seeks to obtain that permit, they can do so in real time and without any involvement with city staff. We already live in this era of real-time answers.
Third, and maybe most worryingly, regulating with an algorithm means that regulations are no longer legible to all citizens. When not everyone can understand the code or the data that’s guiding decisions at City Hall, especially for something as essential and complicated as housing, that’s a sad day for democracy.
We already live in a world where many of our laws are not legible to the average person. But would be rather not have securities regulation, or regulation of the healthcare industry, or regulation of lead in the water because average persons--myself included--have difficulty understanding the basis of the regulation? At some point, a complicated urban environment has to rely upon experts, and it has to entrust those experts to do their work effectively and within a scope of accountability. Sometimes those experts will not do their work properly, and we will hold them accountable. But we don't throw out the regulations because of the occasional failure of the experts to properly apply the regulation.
Perhaps the greater concern expressed here is whether legal requirements enforced and applied by computers in a dynamic, real-time fashion, can be trusted and embraced. How a person feels about that likely has more to do with individual proclivities about privacy and technology generally in this digital age. We should note, though, that we already engage in such trust in many ways with our transportation infrastructure: consider managed lanes; congestion pricing; and adjustable rate parking meters. These are among the first forays into using technology to manage and price markets effectively based on demand and to use that real-time market pricing to spread the demand around the city. While some debate the equity of these particular transportation pricing matters, I do not imagine them as "sad for democracy" because I do not understand the way the algorithm works that determines the price of the fast lane or the perfect parking spot. Instead of running from the technology, I suggest we embrace it, and make it better.
The heart of my argument is that we must marshal technology to assist us with regulation of activities that are based upon new technologies. We cannot expect to regulate the twenty-first century with last century's tools.
Despite our disagreements on implications, I want to thank Ms. Bliss for highlighting these new ideas on CityLab.
Wednesday, February 10, 2016
Headwaters Economics has a new study out looking at the effects of federal public lands on the economies of rural western communities. Here are the three big takeaways:
- From 1970-2014, western rural counties with the highest share of federal lands on average had faster population, employment, personal income, and per capita income growth than their peers with the lowest share of federal lands.
- Similarly, from 1970-2014, counties with the highest share of protected federal lands on average performed better for population, employment, personal income, and per capita income growth than those with the least protected federal lands.
- Some rural counties are struggling and are searching for ways to benefit from nearby federal lands. While every county has unique circumstances, the changing economy of the West has impacted all counties and altered the role and importance of nearby public lands.
Read the rest of the report here.
Tuesday, February 9, 2016
In a recent webinar regarding changes to analyzing transportation impacts under the California Environmental Quality Act, there was one slide that caught my attention more than the rest: 8 reasons why LOS is a failed measure of transportation impact. While there has been much grousing about LOS for a long time, it remains a common way to engage the discussion of transportation planning. This slide, and the discussion thereon, convinced me that it is now clear that LOS is a failed system of transportation planning. That wouldn't be so bad if most transportation agencies didn't still use it. See the video below beginning at approximately Minute 9:30.
Monday, February 8, 2016
John R. Nolon
Distinguished Professor of Law, Pace Law School
Counsel, Land Use Law Center
The Most Appropriate Use of the Land
Immediately after WWII, Euclidian Zoning was not working for the Village of Tarrytown, NY. The Village needed workers to attract employers to build its tax base. For political and economic reasons, it decided not to zone large areas for multi-family housing. Instead, in 1947, the Village board of trustees created a floating garden apartment zone, which allowed landowners who owned ten acres of land or more to apply for the floating zone to alight on their property; a unique two-step process that was clearly not within the specific delegated power of the Village under the state zoning enabling act. The foundation for this creative zoning technique was laid in the Village’s comprehensive plan, which identified the need for affordable housing and an effective means to provide it. The Village knew that a straightforward rezoning of land to multi-family use would greatly increase its value and adversely affect the desired affordability.
In Rodgers v. Tarrytown (1951), the plaintiff, who owned six acres nearby, pointed out that nothing in New York’s zoning enabling act expressly authorized the Village to first create a multi-family zoning district and then, later, apply it to a parcel in a single-family district after consideration of an application made by the parcel’s owner. In the view of the Euclidians, zoning districts were to be changed by amendments to the zoning map, adopted at the same time as the provisions regulating land uses were changed.
The state’s highest court disagreed with the plaintiff, and broadly interpreted the creative authority of local governments. The court noted that “zoning is by no means static….[c]hanged or changing conditions call for changed plans….” And, further, “The village’s zoning aim being clear, the choice of methods to accomplish it lay with the board.” With these words, the Neo-Euclidian period began.
The dissent in Rodgers spoke for the conservative interpretation of the enabling act. It argued that “the device…most assuredly is not ‘zoning.’” It feared that upholding floating zoning could “well prove to be the opening wedge in the destruction of effective and efficient zoning in this State.” The dissent called this an ultra vires act, one that created a nonconforming use in an established zone for the benefit of the owner of a single parcel (also known as “spot” zoning), or gave the legislature the power to grant variances, a power reserved to the zoning board of appeals. Under either interpretation, the dissent believed that the creation of a floating zone was not within the delegated authority of the board of trustees.
The rationale of the majority in Rodgers was on sound footing. The Standard Zoning Enabling Act, which was adopted nearly in its entirety by the New York legislature, contains this provision: “Such [zoning] regulations shall be made…with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the community.” This language was included in most of the zoning enabling acts adopted by state legislatures throughout the country.
If floating zoning was not zoning, in the dissent’s view, what was it? Perhaps this 1951 case sufficiently broadened the term zoning so that, over time, it became land use law. Today, we use land use law, including floating zones and its many siblings, to create sustainable neighborhoods, permit community solar facilities, and promote mixed-use developments oriented to transit. Beyond this first flexible tool, the courts and legislatures have added many more to the land use toolbox: special use permits, overlay zoning, planned unit development districts, receiving and sending zones for the transfer of development rights, growth control ordinances, density bonuses in exchange for affordable housing, and a host of additional Neo-Euclidian devices.
As this century progresses, land use law is becoming an essential strategy for mitigating and adapting to climate change. By properly shaping settlement patterns, it can greatly decrease per capita carbon emissions, water use, energy consumption, and impervious coverage, which causes flooding. Today, lawyers practice land use law - not zoning - thanks, in part, to the Rodgers holding and similar decisions in other states. Students go far beyond memorizing and applying the holding in Euclid and now study dozens of land use techniques. The practice of land use law today focuses on shaping settlement patterns to achieve “the most appropriate use of the land” in an era fraught with frightful challenges.
For more information, see John R. Nolon, The Law of Sustainable Development: Keeping Pace, 30 Pace L. Rev. 1246 (2010).
Links to previous posts in the Zoning Centennial’s Series: